Grounds for refunding value added tax in the absence of an economic source of deduction (refund) of tax in the budget

Abstract. Grounds for reimbursement of value added tax in the absence of an economic source of deduction (refund) of tax in the budget.

Keywords: refund, tax deduction, evasion from schemes, tax benefit, tax liabilities.

The basis for the adoption of the relevant decision was the formed conclusion of the territorial tax authority on the organization's unlawful use of deductions in the purchase book in the value added tax (hereinafter - VAT) declaration based on invoices reflected in the purchase book issued by the counterparty. Based on the results of a perfect audit, the territorial tax authority formed the following conclusion: the organization is a participant in the established scheme of tax evasion, which is characterized as an artificially created document flow for the supply of various goods through participants in the supply chain, which, in turn, do not have real financial and economic activities and, accordingly, do not plan to pay VAT under the law. In general, this organization can be characterized as a company planning to receive an unjustified tax benefit due to the illegal acceptance of VAT amounts in the purchase book presented by the counterparty for deduction.

The court of one of the instances, while positively assessing the claim made by the organization, proceeded from the following:

1) The additional charge of VAT to the organization is due to the presence of signs associated with the imposition of tax obligations of the counterparty on the company in question;

2) At the same time, the non-receipt (incomplete receipt) of VAT to the state budget as a result of established facts on illegal actions of counterparties of several links is a weighty basis for the formation of claims by territorial tax authorities to these organizations and controlled or other persons, and not to the company in question, interest (involvement) which has not been proven to the actions of counterparties. The court potentially established that the payer exercised the necessary due diligence and did not have the relevant information about non-payment of VAT amounts by counterparties of other links, within which he should not be charged with the negative consequences of the tax violations in question.

Canceling a previously issued judicial act and completely refusing to satisfy the formed requirement, the court of appeal, after analyzing the information, came to a decision that the territorial tax authority had proven the circumstances, which generally indicate that the individual responsibility of the company lies in the direct participation and control of schemes of transactions aimed at evasion from taxation with the main purpose of accepting VAT for deduction by taking a fictitious workflow created by the counterparty for the supply of goods through a chain of scheme participants who do not pay VAT to the budget.

The district court gave its agreement with the conclusion of the appellate court.

Subsequently, the case was sent for a new trial, where the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation indicated that due to the classification of VAT as an indirect tax, non-payment (partial non-payment) by its participants in transactions to the budget is a critical sign that can be characterized as potential evasion from taxation and, accordingly, unjustified VAT refund from the budget as a result of the identified coordinated (controlled) actions of counterparties. At the same time, the above-described evasion must be confirmed with evidence and an appropriate assessment by the court as evidence (information) obtained in the framework of tax control measures, as well as the taxpayer's judgments, which prove an objective connection for the acquisition of various goods (works, services) for use for business purposes.

Thus, in cases related to challenging the legality of the application of tax deductions in the purchase book on grounds indicating the absence of an economic source for the deduction (refund) of VAT by the taxpayer of the organization in question, one should also take into account the circumstances associated with the reality of the acquisition of goods (works, services) by the organization. to carry out their activities. A special feature in this situation is evidence of the organization's pursuit of the task of tax evasion as a result of actions controlled with counterparties, or in the complete absence of this goal.

The normative acts cited in this article and the established judicial practice on the application of the provisions, in the opinion of the Judicial Collegium, were not fully taken into account by the courts.